Ego wars gave us flawed laws, reveals Kitonga

Kenya’s Constitution (2010) may have been hailed during its promulgation as among the best drafted laws in the world, but it now emerges that political intrigues of the erstwhile Grand Coalition government influenced alteration of some provisions to suit political whims of the day.

Some of the thorny issues that have remained talking points of the new Constitution were introduced against the draft drawn by the Committee of Experts (CoE), resulting in spoiling the letter and spirit of the law in several clauses.

The two protagonist sides, one led by then President Mwai Kibaki and the other by then Prime Minister Raila Odinga, driven by political interests made drastic changes to the document giving it a complete new meaning on key sections.

Former CoE chairman Nzamba Kitonga yesterday told a post-election workshop for Members of Parliament in Mombasa that political leaders then changed a section in the draft that had proposed a hybrid system of governance and caused it to be replaced with a parliamentary one.

They also changed a proposal to have a Senate of only 13 members as an Upper House to supervise the National Assembly. They whittled it down to a parallel House with a weak mandate and more members.

Kitonga told the stunned legislators that their colleagues in the Tenth Parliament altered the harmonised document that CoE had crafted and instead came up with a draft completely different from the initial one.

Speaker of the National Assembly Justin Muturi had earlier challenged Kitonga to explain to the plenary how the country ended up with a presidential system. The presidential system of government was the creation of a 27-member Constitution Implementation Oversight Committee (CIOC), that revised the CoE’s work and came up with the final “Naivasha Draft”.

Had the CoE original proposals been adopted, Kenya could have ended up with hybrid system of a prime minister, two deputies and a ceremonial president, more like the amendment bill proposed by Tiaty MP William Kamket.

The final draft as altered by CIOC was later to be subjected to a referendum which was overwhelmingly supported by the two sides. Kitonga went on to narrate to the MPs how the CIOC chaired by former Mandera Central MP Abdikadir Mohammed, came up with their own draft that reduced the powers of the Senate.

“The committee ambushed us and came up with a completely new document when they returned from Naivasha,” said Kitonga, adding: “It was tricky since in all the other drafts made earlier, the position was the same that the country adopts a hybrid system. We, therefore, had no option but to sneak in the angle favoured by the political side or else the whole process would be scuttled.”

The CoE had recommended a Senate chamber of 13 members only who would include eminent persons such as former presidents Daniel Moi and Mwai Kibaki, former Vice President Moody Awori and the late politician William ole Ntimama.

The proposal was that the House sits for four times a month. And the Ndaragwa MP Jeremiah Kioni, who played a key role in the Naivasha committee, narrated to his colleagues how difficult the situation was in trying to find a consensus among the members. He said the Naivasha committee had at one time scrapped the creation of the Senate from the draft Constitution.

However, intense pressure and threats by Raila and his ODM party members that they would campaign against the document if the Senate was removed from the final draft forced the committee to reconsider its stance. Kitonga said it was now up to the legislators to consider if eight years after the promulgation of the Constitution, it needs to be amended.

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